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Thursday, 8 July 2010

Odd Couple challenge Digital Economy Act

Not everyone, it is safe to say, is enamoured over the provisions of the UK's Digital Economy Act 2010 (DEA). This piece of legislation, rushed through its various legislative stages via a process of "washing up" before the recent General Election, is now coming under challenge from an unlikely pair of internet service-providing foes -- the (relatively) stately and dignified former telecommunications monopolist BT and the bright, brash, bouncy and boastful TalkTalk.

According to the BBC, this odd couple are seeking a judicial review of the Act on the basis that it received "insufficient scrutiny" [says Merpel, if that alone were sufficient to scupper a piece of legislation, there's many a statute that would be quaking in its legislative boots], also questioning whether its proposals to curb illegal file-sharing harm "basic rights and freedoms". The DEA was treated to a much shorter debate than most other Acts get, and MPs from all parties, including deputy prime minister Nick Clegg, protested at the time that this complex piece of law should have been debated for longer.

The communications sector's regulatory body Ofcom, charged with drawing up detailed plans of how the legislation will work, has recently said that plans to remove peoples' internet connections would not come into force until at least 2011; in May Ofcom drew up a policy for dealing with illegal file-sharers, requiring ISPs to send warning letters to customers who illegally download films, music and TV programmes (on which see the 1709 Blog here).

Initially Ofcom's code is proposed to cover only the seven fixed-line ISPs with over 400,000 subscribers. This, says Andrew Heaney (executive director, TalkTalk) puts BT, TalkTalk and the other large ISPs at a business disadvantage, since huge swathes of customers might move to smaller ISPs in order to avoid detection. The odd couple also feel that the DEA conflicts with EU legislation, since the E-Commerce Directive says ISPs that are merely conduits of user content, of which they have no direct knowledge and which they do not control, should not be held responsible for the traffic on their networks. There may also be issues concerning privacy [all of which suggests that, even if the challenge is ultimately unsuccessful, the issues may have to go to the Court of Justice of the European Union for preliminary guidance, thus buying years of status quo before any changes are implemented].

The BBC notes that BPI, which represents the UK's recorded music industry, has lobbied hard for the Digital Economy Act and has taken legal action against file-sharers in the past. BPI has pointed to the immense damage inflicted on existing rights holders through unrestricted file-sharing, while critics believe the music industry is seeking to protect its old business models with legislation rather than finding new ways to distribute music online.

Will the government forestall the need for lengthy litigation? Deputy prime minister Nick Clegg said that the Digital Economy Act "badly needs to be repealed", but a statement from the Department of Business, Innovation and Skills suggests otherwise:

"The Digital Economy Act sets out to protect our creative economy from the continued threat of online copyright infringement, which industry estimates costs the creative industries, including creators, £400m per year. We believe measures are consistent with EU legislation and that there are enough safeguards in place to protect the rights of consumers and ISPs and will continue to work on implementing them".
To be continued ...

The Odd Couple here
How TalkTalk sells itself to BT customers here
Digital economy for music lovers here and here

4 comments:

Hugo said...

Generally the doctrine of parliamentary sovereignty means that primary legislation is not amenable to judicial review. The only possible option I can see here is a declaration of incompatibility under the Human Rights Act.

Francis Davey said...

In theory you could have a Factortame style "disapplication" as well. I say "in theory" because I can't see any arguable grounds for such an order. I look forward to reading the pleadings.

Thomas Dillon said...

This hopeless action falls within the old legal category of "publicity stunt".

The Music Void said...

Since the passing of the Digital Economy Act 2010, the assent of which evoked a (not entirely) resounding cry of joy from the music industry, its swift passage into law appears to have caused some turbulence amongst ISPs, and all for valid reasons.

More on this available: http://www.themusicvoid.com/2010/07/swings-roundabouts-and-lashings-of-legislative-lamenting/

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